Quoting Former US Assistant Secretary for Children and Families, Wade Horn, who stated,

"Children ought not to be victims of the choices adults make for them,

the Gujarat High Court recently dismissed a father's plea for child custody under the Guardians and Wards Act. The court noted that the family court had already granted custody to the mother based on mutual consent.

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The court further stressed that custody battles often turn children into unintended victims of parental disputes. Therefore, custody decisions must always be considered temporary and subject to change based on the evolving needs of the child.

• The father did not file an application under Section 26 of the Hindu Marriage Act (HMA), which allows courts to modify custody orders.
• Since no such plea was made, the court ruled that the father could not seek relief under Section 25 of the Guardians and Wards Act.
• Justice Sanjeev J Thaker highlighted that every child has a fundamental right to love, care, and protection from both parents.

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"The Court must exercise caution in assessing the claims made by each parent, free from any bias or motive, while prioritizing the child's best interests. The primary and paramount consideration must always be the child's physical and psychological well-being."

• The custody of a minor child should not be treated as a final order but as an interlocutory (temporary) arrangement.
• Courts must remain flexible in modifying custody orders based on changing circumstances.

The court advised the father that if there were new developments that warranted a change in custody, he could move the family court under Section 26 of HMA for necessary modifications.

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• The father had earlier waived his custody rights while filing for mutual divorce.
• The family court had accepted the agreement, making the order legally binding.
• Given this, the High Court ruled that the father’s attempt to claim custody later lacked justification.

"The court cannot invoke Section 25 of the Guardians and Wards Act solely to alter a custody order already passed by a competent court. If such alteration is needed, the correct route is through Section 26 of the Hindu Marriage Act."

The court further cautioned that misusing Section 26 of HMA could lead to instability for the child:

"If one parent gives up custody for the sake of obtaining a divorce and later tries to revoke that decision, it could disrupt the child's settled life. Courts must carefully evaluate such claims to prevent unjustified interference in the child's welfare."

Background of the Case

The case originated from a revision plea filed by the mother challenging a family court order. The legal timeline was as follows:

1. Mutual Divorce & Initial Custody Decision
   • The couple had filed for divorce under Section 13(b) of HMA.
   • The family court awarded custody to the mother based on mutual agreement.
2. Father’s Custody Petition
   • The father later filed for custody under Section 25 of the Guardians and Wards Act.
   • The mother objected, arguing that the case was not maintainable as the previous order under Section 13(b) of HMA had already settled custody matters.
3. Family Court's Rejection
   • The family court dismissed the father’s petition.
   • The father then approached the Gujarat High Court, seeking custody rights.

• The father voluntarily gave up custody during the divorce process.
• The family court’s order was final, and the father had no valid grounds to challenge it under the Guardians and Wards Act.
• Custody orders are always subject to change but must follow the correct legal route through Section 26 of HMA.
• Courts must prioritize the child’s welfare over parental conflicts.

"In the present case, the custody of the minor child remains with the mother through a valid agreement. Since no application was made under Section 26 of HMA, no relief can be granted to the father under Section 25 of the Guardians and Wards Act."

Case title: X v/s Y